A subsequent purchaser who has knowledge of the possession of a property by a tenant or other person in possession under an agreement to sell, and who makes no enquiry as to the nature of that possession, cannot claim to be a transferee without notice and is bound by the agreement to sell.

JUDGMENT :

1. The fourth defendant has filed this appeal against the decree and judgment of the District Court, Cuddapah confirming those of the District Munsif's Court, Proddatur.

2. The suit, which has given rise to this Second Appeal, was instituted for the specific performance of an oral agreement to sell a plot of land of an extent of 4 acres, entered into between defendants 1 to 3 and the plaintiff on 29-11-1948 and also for an injunction restraining the fourth defendant from interfering with the plaintiff's possession. The case for the plaintiff is that the suit land originally belonged to his family, that, in or about the year 1935, it was sold to the family of defendants 1 to 3 and that despite this, he remained in possession of the land as a tenant till 29-11-1948 when the agreement for sale of the land was entered into between the parties, notwithstanding that the lease in his favour had expired two years prior thereto. On account of enmity between the plaintiff and the appellant, the latter obtained a sale deed on 30th December 1944 offering a higher price and with the knowledge of the agreement in favour of the plaintiff. The suit was contested inter alia on grounds that the agreement pleaded was untrue, that, in any event, the fourth defendant could not be affected by the agreement as he was a bonafide purchaser for value without notice and that lastly Sec. 48 of the Indian Registration Act saved the transaction in favour of the fourth defendant.

3. The trial court awarded the claim of the plaintiff holding that the oral agreement set up by the plaintiff was true, that the fourth defendant had notice of the agreement and that Sec. 48 of the Registration Act had no application to the case. On appeal, the learned District Judge of Cuddapah agreed with the findings of the trial court and confirmed the decree of the learned District Munsif. It is that decision, that is now under appeal.

4. In this appeal, the learned Advocate-General contests the propriety of the decree mainly on two grounds: namely, the finding as regards notice is in conflict with the evidence on record and secondly, the learned District Judge has failed to advert to the contention of the appellant, based on Sec. 48 of the Indian Registration Act. The learned Advocate-General did not canvass the finding regarding the truth of the oral agreement and rightly in my opinion, as there was ample material in support of that finding. No doubt, the judgment of the District Judge is very unsatisfactory but the matter has been exhaustively dealt with by the District Munsif and I have also gone through the record and satisfied myself that this finding is fully justified by the evidence on record.

5. The learned Advocate-General further urged that there was no basis for the conclusion of the courts below that the appellant was not a bonafide purchaser without notice of the suit agreement. It is true that there is no evidence to show that the appellant was aware of the oral agreement between the plaintiff and defendants 1 to 3, but the trial court relied on several circumstances indicating that the appellant had notice of the suit agreement, apart from the burden which rests upon the appellant to prove that he had no notice thereof. The lower appellate court expressed its agreement with this view, though the discussion even on this part of the case is not very helpful. That apart, there is the admitted fact that the plaintiff was in possession of the land in question and that the appellant was aware of it and yet he did not institute any enquiry under what title the former was in possession of the land. The question for consideration is whether these facts constitute notice within the meaning of Sec. 27(b) of the Specific Relief Act. It is urged by the Advocate-General that the notice contemplated by clause (b) of Sec. 27 of the Specific Relief Act is “actual notice” and not “constructive notice” and places reliance on Sec. 3 of the Transfer of Property Act whic